It has long been said that facts cannot be protected by copyright. However, copyright jurisprudence has been less than clear about what constitutes a fact, and about the reasons why facts cannot be copyrighted. Although the Supreme Court of Canada, in its recent decision in CCH Canadian Ltd. v. Law Society of Upper Canada, restated the principle that facts cannot be copyrighted, the court also set a standard for originality that can easily be interpreted so as to offer copyright protection to facts. In this paper the author explores the concept of “facts”, and the way in which Canada’s standard for originality might be used to extend copyright to facts. She examines the policy reasons why facts should not be copyrightable, and argues for an interpretive approach that leaves facts in the public domain.

Radio Frequency ID tags are poised to replace the UPC barcode as a mechanism for inventory control in the wholesale and retail contexts. Yet the tiny chips offer a range of potential uses that go beyond the bar code. In this paper we define RFID technology and its applications. We explore the privacy implications of this technology and consider recent attempts in the U.S. and European Union to grapple with the privacy issues raised by the deployment of RFIDs at the retail level. We then consider the extent to which Canada’s Personal Information Protection and Electronic Documents Act will apply to RFID technology, before making recommendations for initiatives to proactively address the privacy issues that RFIDs will raise.

In CCH Canadian v. Law Society of Upper Canada, the Supreme Court of Canada set out the standard for originality in Canadian copyright law. Originality was a central issue in the recent decision of the Quebec Court of Appeal in Bonnette c. Dominion Blueline Inc. In this paper, the author examines how the Court of Appeal applied the new standard of originality. In the course of the analysis, the author establishes the importance of properly distinguishing between functional literary works and compilations both for an analysis of originality and for the infringement analysis.

In Kraft Canada, Inc. v. Euro Excellence, Inc., the Federal Court of Appeal ruled that the secondary infringement provisions of the Copyright Act could be used to prevent the parallel importation into Canada of chocolate bars, due to copyrights in the trade-mark logos on the product labels. The effect of this decision, currently on appeal to the Supreme Court of Canada, is to give trade-mark holders a tool to prevent parallel importation in contexts where trade-mark law has generally been ineffective. While the use of copyright law to achieve a result in these circumstances is problematic, the author argues that the solution lies in legislative amendment rather than in creative interpretations of the Copyright Act.

“Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization” (2007) 6 Canadian Journal of Law and Technology 29-60. (With Stephen Coughlan, Robert Currie and Hugh Kindred) PDF Available here.

The reach of national law is often greater than its grasp. Canada, like other countries, has effective legal power over its territory and all within it. However, one consequence of the current process of globalization, for good or ill, is that Canadian interests are no longer contained exclusively within Canadian borders. Canada thus finds it increasingly necessary to consider asserting its legal jurisdiction beyond its frontiers. In this we consider issues of jurisdiction, distinguishing between territorial and extraterritorial jurisdiction, and defining and discussing legislative/prescriptive jurisdiction, executive/enforcement jurisdiction, investigative jurisdiction and judicial/adjudicative jurisdiction. We discuss the mechanics of extraterritorial action, and the means by which extraterritorial action is taken. We also consider the policy justifications which have primarily motivated Canada to act extraterritorially in the past. In the second part of the paper, we consider whether the lessons of the past are applicable to the future. Primarily we will do this by pursuing four “case studies” of areas of law which raise new and challenging issues. These include i) the internet; ii) personal data protection, iii) human rights and iv) competition in the marketplace.